2014-FEB-14: A legal opinion: Comparison of Utah case to similar cases in other states:

David S. Cohen is a law professor at Drexel University. Dahlia Lithwick is a contributing editor at Newsweek and senior editor at Slate Magazine. They wrote an article in Slate.com with the rather enthusiastic title:

"It’s Over: Gay Marriage Can’t Lose in the Courts: A perfect record for equality post-Windsor."

They commented that District Court Judge Arenda L. Wright Allen in Virginia:

"... joined a unanimous and ever-expanding collection of federal judges who have chosen to answer the question left up in the air by the Supreme Court last Spring: Did the Windsor decision — striking down the federal Defense of Marriage Act — pretty much strike down gay-marriage bans as well? ..."

"Insofar as there was confusion about what Windsor meant at the time it was decided, the lower courts across the country have now effectively settled it. A survey of publicly available opinions shows that in the eight months since Windsor, 18 court decisions have addressed an issue of equality based on sexual orientation. And in those 18 cases, equality has won every single time. In other words, not a single court has agreed with Chief Justice Roberts that Windsor is merely about state versus federal power. Instead, each has used Windsor exactly as Justice Scalia 'warned' — as a powerful precedent for equality. ..."

"This hasn’t all been about marriage. Twelve decisions have addressed a substantive aspect of marriage equality since Windsor, and equality has won in all 12 -- with the Virginia decision now joining decisions from Kentucky, New Mexico, Oklahoma, Utah, and West Virginia, and two decisions each in Illinois, New Jersey, and Ohio. But six other cases since Windsor have addressed different aspects of discrimination based on sexual orientation, such as discrimination on juries and employment benefits, and the side of equality has won in all six of those cases as well.

"The tally is even starker when you look at the number of judges who have considered the issue. Since Windsor, in these 18 decisions, 32 different judges have considered whether Windsor is merely about the relationship between the state and federal governments or whether it is about equality. And all 32 of them have found for equality. In other words, 32 accomplished, intelligent lawyers, appointed by Democrats and Republicans, whose job it is to read precedent, have ruled for equality. Not a single one has disagreed. 2

Makeup of the three judge panel in 10th Circuit court:

The above prediction of continuing progress towards marriage equality in other states may fail with the 10th Circuit Court of Appeals in Utah. The three-judge panel who were selected at random from the full court consist of two judges appointed by Republican presidents and one by a Democratic president. Their decision may be shifted towards the marriage inequality direction. The three judges on the 10th Circuit panel are:

Judge Paul Kelly -- who is considered conservative -- an appointee of President George H.W. Bush .

Judge Carlos Lucero -- a Clinton appointee -- who is considered liberal.

Judge Jerome Holmes -- a George W. Bush appointee -- who might be expected to be conservative. However, he was one of two judges to deny the State of Utah's request for a stay of the District Court's decision so that SSMs became temporarily available in the state. 1,2

After hearing the Utah case, the same panel of the 10th Circuit will later consider an almost identical case from Oklahoma called Bishop v. Oklahoma one week later -- on APR-17.

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2014-APR-10: Oral arguments before the Court of Appeals:

The Kitchen v. Herbert case is before the U.S. Court of Appeals for the Tenth Circuit. This is the first case to reach a federal Circuit Court since oral arguments were heard in Brown v. Perry before the 9th Circuit Court of Appeals in 2012. On matters related to sexual orientation and marriage equality, two years is a long time in a rapidly changing field.

Hearings were held before a three-judge panel of the Tenth Circuit in Denver, CO on APR-10.

About 30 similar cases have been filed in the federal District Courts of Kentucky, Michigan, Oklahoma, Texas, Virginia, and other states since the U.S. Supreme Court issued its ruling in Windsor v. United States on 2013-JUN-26. Most, if not all, of the cases are being argued on the basis of the due process and equal protection clauses of the 14th Amendment of the U.S. Constitution. These clauses require federal and state governments to treat people -- and thus couples -- equally. Thus, individuals and groups promoting marriage equality are reasoning that if the state allows qualified opposite-sex couples to marry, it must also allow qualified same-sex couples to marry, restricted only on the basis of age, genetic closeness, and the ability to pay for a marriage license. So far, all of the rulings by District Courts have turned out in favor of allowing loving, committed same-sex couples to marry. Most or all cases have been appealed; all have been stayed pending rulings by federal Courts of Appeal. 2

Whatever ruling is issued by the panel, the case will likely be appealed to the full U.S. Tenth Circuit Court of Appeals and later perhaps to the U.S. Supreme Court.

According to The Rainbow Times, the court has issued an order forbidding any:

"... audio or video recording, broadcasting, photography, blogging, tweeting, emailing, or any other broadcast mechanism or wireless communication anywhere in the courthouse during oral arguments." 2

Attorney Gene Schaerr has resigned his partnership in a private law firm to become the Special Assistant Attorney General for Utah. He will lead the state of Utah's defense of marriage inequality. He issued a memo when he left his previous job in which he said that he was leaving to:

"... fulfill what I have come to see as a religious and family duty: defending the constitutionality of traditional marriage in the state where my church is headquartered and where most of my family resides."

If that is typical of his understanding of the case, then he might be in trouble before the Court of Appeals. Kitchen v. Herbert does not challenge the "constitutionality of traditional marriage." It does not seek to prohibit couples composed of one woman and one man from marrying. The lawsuit challenges whether loving, committed same-sex couples can be all automatically rejected by state's Constitution as ineligible to marry simply because of their sex.